STEVEN CARTER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6907 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-18a) is reported at 910 F.2d 1524. JURISDICTION The judgment of the court of appeals was entered on August 23, 1990. A petition for rehearing was denied on September 25, 1990. On November 7, 1990, Justice Stevens extended the time for filing a petition for a writ of certiorari to January 21, 1991, a federal legal holiday. Pet. App. 20a. The petition for a writ of certiorari was filed on January 22, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's confessions were voluntary. 2. Whether confessions that petitioner made before he was presented to a federal magistrate should be suppressed on the ground that the confessions were made nine hours after his arrest by state authorities. 3. Whether petitioner was properly sentenced as a "career offender" under Section 4B1.1 of the Sentencing Guidelines. STATEMENT Following a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted on two counts of robbing a credit union, in violation of 18 U.S.C. 2113(a). He was sentenced under the Sentencing Guidelines to 262 months' imprisonment. 1. On January 9, 1989, petitioner robbed a branch of the Acme Continental Credit Union located in the CNA Insurance building in Chicago, Illinois. He gained access to the area behind the tellers through an unlocked security door separating that area from the lobby. After striking two tellers with his fist, petitioner grabbed the money in one of the cash drawers. He then ran out of the credit union and fled through a stairwell door that he had propped opened earlier. Petitioner escaped with $14,198. Pet. App. 2a; Gov't C.A. Br. 4-11. On January 20, petitioner robbed the same credit union a second time in a similar fashion. Although the security door was kept locked after the first robbery, petitioner gained access to the area behind the tellers by rushing through the security door after an employee came through it. Petitioner repeatedly struck a teller and the president of the credit union, and then grabbed the money in the cash drawers. He ran out of the credit union and again fled through the stairwell door. Pet. App. 2a. This time, however, petitioner encountered Gerald Moews in the hallway before reaching the stairwell. Moews chased petitioner down the stairs and out of the building. After following petitioner on the street for several blocks, Moews saw petitioner get into a car and drive away. As petitioner passed him, Moews noted the car's license number. The license number was later traced to petitioner's car, which had been purchased with cash a few days after the first robbery. Pet. App. 2a; Gov't C.A. Br. 11-16. 2. Both the Chicago police department and the FBI investigated the robberies. In late January or early February, FBI Agent Joseph Doorley learned that the Chicago police planned to place a hold on petitioner, who was on parole from a prior state robbery conviction, when he next reported to his parole officer in Chicago. Doorley decided to defer to that plan to arrest petitioner, but he intended to go to the parole office with the Chicago police to take petitioner into federal custody. On the day of the arrest, however, Doorley was unable to go to the parole office because he was required to go out of town to fulfill a training obligation. Pet. App. 2a-3a; Gov't C.A. Br. 17-18, 27. At approximately 2:30 p.m. on February 16, 1989, petitioner was arrested by Chicago police officers at the parole office. He was brought to the police station about an hour later. Lashan Riggins, petitioner's fiancee who was four months pregnant, had accompanied him to the parole office. Riggins was also brought to the police station because the officers had learned during the investigation that a woman may have been in the car with petitioner when he made his escape after the second robbery. Pet. App. 3a; Gov't C.A. Br. 18. Upon arriving at the police station, petitioner was questioned briefly by Detective Steve Glynn. He denied any involvement in the two robberies. Petitioner was then placed in a lineup. He was identified by five credit union employees, by Moews, and by another person who saw him in the building before the first robbery. Pet. App. 3a; Gov't C.A. Br. 18. Shortly afterwards, Assistant State's Attorney Kathryn Gallanis arrived at the police station. At 8:45 p.m., Gallanis and Detective Glynn interviewed Riggins for 15 minutes, and Riggins signed a written statement. Gallanis and Glynn then questioned petitioner. When petitioner was told that he had been identified, he confessed to both robberies, and he asked that his parole officer be told of his cooperation. At 11:45 p.m., petitioner reviewed written confessions prepared by Gallanis, made some corrections, and signed the statements. Before being taken to the lockup, petitioner was allowed to speak privately with Riggins for a few minutes. Pet. App. 3a; Gov't C.A. Br. 18-19. The next morning, FBI Agent Doorley learned that petitioner had been arrested by the Chicago police. Doorley arranged to have petitioner transferred to federal custody later that day. Pet. App. 3a. 3. a. Before trial, petitioner moved to suppress his statements on the ground that they were made after he had been held in custody for more than six hours and before he was brought before a magistrate, in violation of the McNabb-Mallory rule /1/ and 18 U.S.C. 3501. Petitioner also maintained that his statements were involuntary because they had been induced by threats that his pregnant fiancee would be charged if he did not confess. Pet. App. 4a. At the evidentiary hearing on the motion, Detective Glynn testified that petitioner asked about Riggins three times while he was in custody. The first occasion was during the initial interview before the lineup. Petitioner asked where Riggins was, and Detective Glynn told him that Riggins was in an upstairs room and was fine. The second time was after the lineup. Petitioner asked whether Riggins would be charged, and Detective Glynn responded that he did not know because the prosecutor had not finished her investigation. Detective Glynn admitted at the hearing, however, that he knew the prosecutor had no intention of prosecuting Riggins at the time that he made the statement to petitioner. The third time that petitioner asked about Riggins was after he had confessed. Detective Glynn then arranged for petitioner to speak with Riggins privately before going to the lockup. Pet. App. 4a; Gov't C.A. Br. 19-20. Petitioner testified to a different series of events at the hearing. He testified that Detective Glynn told him three or four times between the first interview and the lineup that Riggins would be in trouble and would have her baby in jail if he did not confess. Petitioner claimed that the detective repeated the threat twice after the lineup. According to petitioner, the second threat was made just before he confessed, and he was told that Riggins would be charged unless he confessed. Petitioner testified that his only concern was to get Riggins released at that point. On cross-examination, petitioner admitted that he had confessed to robberies on two other occasions in the past after he was arrested and identified by witnesses to those robberies. Pet. App. 4a; Gov't C.A. Br. 20-21. Riggins also testified at the hearing. She claimed that Detective Glynn told her that she had been identified as a participant in the robbery and that Glynn had twice threatened that she would have her baby in jail if she did not cooperate. On cross-examination, Riggins testified that petitioner told her at the police station that he had confessed in order to get her out. She admitted, however, that she had previously told an Assistant U.S. Attorney and an FBI agent that petitioner had confessed to her when they spoke at the police station. Pet. App. 4a-5a; Gov't C.A. Br. 21. b. The district court denied petitioner's motion to suppress his confessions. The court ruled that the delay in bringing petitioner before a magistrate was a factor in determining whether his confessions were voluntary, but concluded that the delay was not decisive, for two reasons. First, the court found that the delay was justified by the need to determine whether the witnesses could identify petitioner at the lineup and, if they could, to question petitioner. The court also found that the delay had no measureable influence on petitioner's decision to confess. Pet. App. 5a, 22a-25a, 27a. The district court squarely rejected petitioner's claims that Detective Glynn had threatened petitioner that Riggins would be charged if he did not confess, and that petitioner's confessions were the product of such threats. The court made the credibility determination that Glynn had told the truth during his testimony and that petitioner had lied. Based on that finding, the court also found that "(Glynn) did not say (the threats) to (petitioner) * * *." Pet. App. 26a. The court also found that Glynn did not threaten Riggins. Although the court found that Glynn initially told Riggins that a woman may have been involved in the second robbery, the court concluded that Glynn's statement was made before he reached his conclusion that Riggins had not been involved in the robberies. Glynn's statement, the court found, was offered to Riggins as information, rather than as a threat. Pet. App. 5a, 25a-27a. 4. Petitioner was sentenced on November 8, 1989. Pet. App. 28a-29a. He had two prior felony convictions under Illinois law for robberies committed in 1983 and 1985. /2/ The district court therefore applied the "career offender" provision of Section 4B1.1 of the Sentencing Guidelines to determine petitioner's sentence. /3/ Under Section 4B1.1, petitioner was classified as an offender with a criminal history category of VI and an offense level of 32. His Guidelines range was 210-262 months' imprisonment. The district court sentenced petitioner to consecutive terms of 240 months on the first count and 22 months on the second count, for a total term of 262 months' imprisonment. Pet. App. 1a-2a, 14a. 5. The court of appeals affirmed. Pet. App. 1a-18a. It ruled that petitioner's confessions were properly admitted into evidence at trial. The court held that neither the McNabb-Mallory rule nor 18 U.S.C. 3501(c) required suppression of petitioner's statements on the ground that he made them more than six hours after his arrest, and before he was presented to a magistrate. The court reasoned that petitioner failed to show the federal and local authorities had agreed to keep petitioner in the custody of the local authorities in order to circumvent the federal presentment requirements. Pet. App. 6a-8a. The court of appeals also upheld as not clearly erroneous the district court's findings that Detective Glynn did not threaten petitioner. Id. at 8a-9a. Based on those findings, the court of appeals rejected petitioner's claim that his confessions were involuntary because they had been coerced by Detective Glynn's threats to charge his fiancee if he did not cooperate. Id. at 8a-10a. The court also ruled that petitioner was properly sentenced as a "career offender" under Section 4B1.1 of the Sentencing Guidelines. The court rejected petitioner's claim that the district court was required to explore the underlying facts of his two prior state robbery convictions in order to determine whether each one was a "crime of violence" for purposes of Sentencing Guidelines Section 4B1.1. Pet. App. 14a-18a. ARGUMENT 1. Petitioner claims that his confessions should have been suppressed because they were not voluntary. Pet. 17-24. Petitioner's fact-bound contention does not warrant this Court's review. Petitioner's contention is based primarily on the claim, Pet. 23, that he confessed because Detective Glynn told him that Riggins would be charged if petitioner did not cooperate. Petitioner's claim that Glynn threatened him, however, was supported only by his own testimony at the suppression hearing, and the district court expressly found that Detective Glynn did not threaten petitioner. As the court of appeals explained, "(t)he trial judge did not believe defendant; rather, he accepted Glynn's testimony that no such threats were made." Pet. App. 9a. Since the district court's finding that Glynn did not threaten petitioner was based on its decision to credit the testimony of Glynn rather than petitioner, the court of appeals correctly concluded, Pet. App. 8a-9a, that that finding was not clearly erroneous. See Miller v. Fenton, 474 U.S. 104, 112 (1985) (subsidiary factual questions, such as whether certain conduct occurred, related to the question whether a confession is voluntary are questions of fact). See generally Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). At bottom, petitioner's claim that his confessions were coerced rests solely on Detective Glynn's false statement to petitioner after the lineup that he (Detective Glynn) did not know whether Riggins would be charged because the prosecutor had not finished her investigation. As the court of appeals noted, Glynn's statement thus suggested an "undercurrent of deceit." Pet. App. 10a. But giving a suspect in custody false information does not necessarily render involuntary a statement by the suspect. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (rejecting the claim that the confession of a defendant in custody was involuntary because he was falsely told that his co-defendant had turned state's evidence). Moreover, Detective Glynn's false statement did not cause petitioner to confess. As the court of appeals in this case explained, "it seems implausible to conclude that (petitioner) was led to believe that (Riggins') fate depended on whether he confessed, in light of the trial court's findings that he was not threatened." Ibid. Indeed, nothing in Glynn's statement to petitioner after the lineup linked petitioner's cooperation to the release of Riggins. In addition, petitioner confessed shortly afterwards when he learned that seven witnesses at the lineup had identified him. After he orally confessed, petitioner asked only that his parole officer be informed of his cooperation. He did not ask to speak to Riggins until after he had reviewed and signed the written statement more than 30 minutes later. Under these circumstances, the court of appeals correctly determined that Detective Glynn's statement to petitioner did not coerce petitioner into making involuntary confessions. 2. Petitioner contends that his statements should have been suppressed because they were made more than six hours after he was taken into custody and before he was presented to a magistrate. Pet. 25-28. In McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), this Court, exercising its supervisory powers over the federal courts, held that a confession made by a defendant while in custody is inadmissible if it is obtained during a period of unnecessary delay between his arrest and his initial presentment to a magistrate. In 1968, however, Congress eliminated any such per se rule by enacting 18 U.S.C. 3501. That statute bars the exclusion of an otherwise voluntary confession on the ground of unreasonable delay before presentment if the confession was obtained within six hours of detention. That statute also prohibits the exclusion of a custodial confession obtained more than six hours after detention if the confession was voluntarily given. /4/ Accordingly, Congress has expressly rejected the per se rule that petitioner urges the Court to apply. In any event, the court of appeals properly rejected petitioner's claim that his confessions should have been excluded under 18 U.S.C. 3501(c) because they were made more than six hours after he was arrested by the local police officers. It explained that "time spent in state custody does not count toward the six-hour limitation prescribed in Section 3501(c) unless a working arrangement between federal agents and state or local authorities can be 'clearly shown.'" Pet. App. 7a (citations omitted). The court correctly concluded that neither 18 U.S.C. 3501 nor the McNabb-Mallory rule applied in this case because petitioner failed to show "that (FBI Agent) Doorley refrained from participating in the arrest and subsequent interrogation so that a confession could be obtained without having to comply with federal presentment requirements." Id. at 7a-8a. Petitioner's fact-bound assertions, Pet. 27-28, that there was a collusive working arrangement between Agent Doorley and the local police do not warrant this Court's review. As petitioner points out, Pet. 26-27, the Seventh Circuit's decision is at odds with Ninth Circuit decisions ruling that pre-arraignment delay while in state or local custody counts toward the six-hour limitation prescribed in Section 3501(c). See United States v. Fouche, 776 F.2d 1398, 1406 (9th Cir. 1985). /5/ Most other courts of appeals appear to share the Seventh Circuit's view that time spent in state or local custody does not count towards the six-hour limitation unless a defendant establishes a collusive arrangement between federal and state or local authorities to circumvent federal presentment requirements. See, e.g., United States v. Barlow, 693 F.2d 954, 958-959 (6th Cir. 1982), cert. denied, 461 U.S. 945 (1983); United States v. Van Lufkins, 676 F.2d 1189, 1193 (8th Cir. 1982); United States v. Torres, 663 F.2d 1019, 1024 (10th Cir. 1981), cert. denied, 456 U.S. 973 (1982); United States v. Greer, 566 F.2d 472, 474 (5th Cir.), cert. denied, 435 U.S. 1009 (1978). Further review is not warranted in this case to resolve that narrow disagreement between the Ninth Circuit and the other courts of appeals because petitioner's confessions were admissible under 18 U.S.C. 3501 even if the time spent in local custody is counted toward the six-hour limitation. Section 3501(a) provides that "a confession * * * shall be admissible in evidence if voluntarily given." Under Section 3501(b), the time elapsing between arrest and arraignment is but one factor to be considered in determining whether a confession made during that interval was voluntary. That provision explicitly provides that this factor "need not be conclusive on the issue of voluntariness of the confession." Section 3501(c) provides that no otherwise voluntary confession shall be held inadmissible solely because the delay was more than six hours. The courts of appeals -- including the Ninth Circuit -- uniformly agree that under Section 3501 delays of more than six hours must be evaluated on a case-by-case basis to determine whether the confession was voluntary notwithstanding the delay. See, e.g., United States v. Wilson, 838 F.2d 1081, 1082-1086 (9th Cir. 1988); United States v. Fouche, 776 F.2d at 1406; United States v. Rubio, 709 F.2d 146, 153-154 (2d Cir. 1983); United States v. Manuel, 706 F.2d 908, 914 (9th Cir. 1983); United States v. Van Lufkins, 676 F.2d at 1193; United States v. Gorel, 622 F.2d 100, 104 (5th Cir. 1979), cert. denied, 445 U.S. 943 (1980); United States v. Mayes, 552 F.2d 729, 733-734 (6th Cir. 1977); United States v. Shoemaker, 542 F.2d 561, 563 (10th Cir.), cert. denied, 429 U.S. 1004 (1976); United States v. Bear Killer, 534 F.2d 1253, 1257 (8th Cir.), cert. denied, 429 U.S. 846 (1976); Government of Virgin Islands v. Gereau, 502 F.2d 914, 924 (3d Cir.), cert. denied, 420 U.S. 909 (1974); United States v. Johnson, 467 F.2d 630, 636-637 (2d Cir. 1972), cert. denied, 413 U.S. 920 (1973); United States v. Halbert, 436 F.2d 1226, 1234 (9th Cir. 1970). In this case, the evidence showed that petitioner's statements were voluntary. When petitioner was first questioned at the police station an hour after his arrest, Detective Glynn simply told petitioner what he had been arrested for, and the detective ended the interview when petitioner denied involvement. When petitioner was questioned the second time by Glynn and the prosecutor after the lineup, petitioner immediately confessed after being told that he had been identified. In the interval, petitioner was permitted to smoke, he was offered food, and he was allowed to use the bathroom. Gov't C.A. Br. 32. The district court acknowledged that the pre-arraignment delay was "a factor that has to be considered in terms of involuntariness." Pet. App. 23a. Although the district court believed that the delay was justified by the need to complete the investigation, the court noted that, "assuming (the delay) was unnecessary, it would not in my view lead to a conclusion that voluntariness has not been shown * * *." Id. at 24a-25a. Indeed, the court ultimately concluded that "the delay may well have been necessary, and if unnecessary, was not a significant or indeed any measurable influence in obtaining (the confessions)." Id. at 27a. The district court thus found that petitioner's confessions were voluntarily given even when the time spent in local custody was taken into consideration. Accordingly, because petitioner's confessions were properly admissible under 18 U.S.C. 3501, further review is not warranted. 3. Finally, petitioner contends that he should not have been sentenced as a "career offender" under Section 4B1.1 of the Sentencing Guidelines because the record does not establish that force was actually used in more than one of the robberies underlying his two prior felony convictions. Pet. 28-32. Sentencing Guidelines Section 4B1.1 provides an enhanced penalty when a defendant who is at least 18 years old commits a crime of violence and has at least two prior felony convictions of a crime of violence. The term "crime of violence" is currently defined in Section 4B1.2(1)(i) to include "any offense under federal or state law punishable by imprisonment for a term exceeding one year that has as an element the use, attempted use, or threatened use of physical force against the person of another." In addition, Application Note No. 2 in the commentary to Section 4B1.2 specifically provides that "'(c)rime of violence' includes * * * robbery" as well as a number of other listed offenses. /6/ In this case, it was undisputed that petitioner had two prior felony convictions in 1983 and 1985 for robbery under Illinois law. See page 7 note 2, supra; Pet. 14. Illinois law provides that "(a) person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force." Ill. Ann. Stat. ch. 38, Section 18-1(a) (1990). Each of the robberies of which petitioner was convicted was therefore a "crime of violence" within the definition of Guidelines Section 4B1.2. Consequently, petitioner was properly subjected to an enhanced penalty under the "career offender" Guideline, Section 4B1.1 There is no merit in petitioner's contention that a sentencing court must examine the facts underlying a prior conviction to ascertain whether violence was actually used in determining whether the offense constitutes a "crime of violence" for purposes of Guidelines Sections 4B1.1 and 4B1.2(1). The prior definition of "crime of violence" did not require such case-specific proof. Similarly, the current definition of a "crime of violence" in Section 4B1.2(1) is nearly identical to the definition of a "violent felony" in 18 U.S.C. 924(e)(2)(B); both definitions are phrased in terms of an offense that "has as an element" the use or threat of force. /7/ Moreover, in a manner similar to 18 U.S.C. 924(e)(1), Guidelines Section 4B1.1 refers to a defendant who "has at least two prior felony convictions" for -- and not a person who has committed -- two previous crimes of violence or drug offenses. This Court recently held that, in applying 18 U.S.C. 924(e), "Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Taylor v. United States, 110 S. Ct. 2143, 2159 (1990). The same reasoning applies with equal force to Guidelines Sections 4B1.1 and 4B1.2(1). It thus follows that a district court is required to look only to the fact of conviction and the statutory definition of the prior offense -- and not the underlying facts -- when applying Sections 4B1.1 and 4B12.(1) to determine whether a defendant is a "career offender." See also United States v. Selfa, 918 F.2d 749, 751-752 (9th Cir.), cert. denied, 111 S. Ct. 521 (1990). There is likewise no merit in petitioner's contention that the Sentencing Commission's definition of a "crime of violence" exceeds the scope the enabling statute, 28 U.S.C. 994(h). /8/ That contention is predicated on the claim that Congress intended that "a crim of violence" be restrictively defined to mean only crimes in which physical force was actually used in accordance with the dictionary definition of "violence." In the enabling statute, however, Congress specifically directed the Sentencing Commission to draft guidelines "consistent with all pertinent provisions of * * * title 18, United States Code * * *." 28 U.S.C. 994(a). The career offender Guideline is fully consistent with 18 U.S.C. 16 and 924(e). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted, KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney MARCH 1991 /1/ See McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957). /2/ In 1983, petitioner pleaded guilty to three counts of robbery of a 7-11 store. In 1985, petitioner pleaded guilty to four counts of robbery of the same 7-11 store. Appellant's C.A. Br. and App. 24. See 8 Tr. 1012. /3/ Sentencing Guidelines Section 4B1.1 provides in part: A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. /4/ 18 U.S.C. 3501 provides in part: (a) In any criminal prosecution brought by the United States * * * a confession * * * shall be admissible in evidence if it is voluntarily given. * * * (b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between the arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment * * *. The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession. (c) * * * (A) confession * * * shall not be inadmissible solely because of delay in bringing such person before a magistrate * * * if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate * * * beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate * * *. /5/ United States v. Halbert, 436 F.2d 1226, 1234 & n.4 (9th Cir. 1970), see Pet. 26, simply assumed that a period of time in state custody must be counted. United States v. Manuel, 706 F.2d 908, 914 (9th Cir. 1983), see Pet. 26, involved an initial detention by Indian tribal police, not by state law enforcement authorities. Contrary to petitioner's contention, Pet. 26, the decision below does not conflict with Anderson v. United States, 318 U.S. 350 (1943). There, this Court relied on McNabb to suppress confessions obtained from defendants who were in state custody. Federal agents had intermittently questioned the defendants over a period of six days, during which the suspects saw neither friends, relatives nor counsel while they and at least 13 others were held in custody at a Y.M.C.A. after being illegally detained by state officers. 318 U.S. at 353. The Court found that "(t)here was a working relationship between the federal officers and the sheriff of Polk County which made possible the abuses revealed by this record." 318 U.S. at 356. The Court concluded that "the fact that the federal officers themselves were not formally guilty of illegal conduct does not affect the admissibility of the evidence they secured improperly through collaboration with state officers." Ibid. No such "working relationship" or "collaboration" is present in this case. /6/ The definition of "crime of violence" in Section 4B1.2(1) was amended effective November 1, 1989. Petitioner's claim, however, rests on the pre-amendment version of Section 4B1.2(1), which provided that "(t)he term crime of violence" as used in this provision is defined under 18 U.S.C. Section 16." Section 16 of Title 18 contained as part (a) virtually the same definition of the term "crime of violence" that is quoted in the text, as well as a part (b) stating "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The Sentencing Commission made clear that this original version of the career offender Guideline also included robbery. United States Sentencing Comm'n, Guidelines Manual Application Note 1, at 4.12 (Jan. 15, 1988). /7/ When Section 4B1.2(1) was amended effective November 1, 1989, the Sentencing Commission said that "(t)he definition of crime of violence used in this amendment is derived from 18 U.S.C. 924(e)." United States Sentencing Comm'n, Guidelines Manual App. C, at p. C.123 (Nov. 1, 1990). /8/ 28 U.S.C. 994(h) provides in part: (h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and -- (1) has been convicted of a felony that is -- (A) a crime of violence; or (B) (a controlled substance offense); and (2) has previously been convicted of two or more prior felonies, each of which is -- (A) a crime of violence; or (B) (a controlled substance offense).